"Preemption is a silly and absurd aspect of a patent eligibility test."
Fine, I have no problem with you characterizing it that way. I rather think it isn't. But either way, so frakin what? Nobody can do anything about it.

Oh really? The case was "set up" for that? By whom? The plaintiff? The defendant? And why should I care that whatever person in question set them up? Why should you care?
"which goes to point out that your 'theory' is nothing but crock."
What "goes to" "point out" that? The setting up by some unknown person? It sounds like you're just using empty phrases you've heard around the interwebs.
There's nothing that can show that my "theory" is "nothing but a crock", because it is, no matter whether it is a "crock" a judicially implemented "crock" which you, and the rest of us are obliged to obey. My "pet theory" has been reaffirmed, time and time again by the USSC and is now being taught as cannon in the PTO. Though it is admittedly taught alongside some committee made "policy" about "factors" that I lol @.
So even if I agree with you that it be a "crock", it is a judicially implemented "crock" that we are obliged to obey. And there is nothing within your power that can be done about that.
Brother, you're a tar d, and there's nothing that can be done to help you on that front, but you could at least try to phrase your interest in the topic about which you constantly troll in phrases that make some sense to sane people. You don't have to babble about ladders and what all this nonsense or that all other nonsense.
If all you want me to do is agree with you that it is a judicially made crock that you're obliged to obey, then you could have just said so ages ago. Because it is not a totally unfair characterization for a super strict textualist to characterize it as such. I'm quite happy to say that, you, as a strict textualist, are firmly entitled to call it a "crock". Got that? Now maybe you can just stf u with the tro llin'?
"You said that you had doen this at least twice 6 - and yet, you seem to be spending one H311 of a larger amount of energy AVOIDING the analysis.
"
Brother, you don't seem to understand, I'm less worried about Ultramercial, the latest flavor of the day in terms of patents claiming an abstraction, which I've already gone over on these boards ad infinitum, and I'm much more interested in figuring out how to get you to stop trol ling every other g d post in every thread about how MM, or me, or Ned, or whoever is "running away" or "not answering" or doesn't understand the PMD, or doesn't understand ladders, or or or or or. Where you always make it a point to couch whatever point you're making in some sort of ta rdspeak. We all know your position, backwards and forwards, you have no need to remind us of it every hour on the hour every day on the morrow or even every week/month/year. Similarly, we all know your supposed "gotcha" questions, and how we'd answer them just fine, and usually have answered them ad infinitum already though you beg for the answer (or was it "inclusion in their narrativelol?") for the umpteeth time.

"a machine DOES NOT - CANNOT - think"
Your best buddy Eugene's favorite computer Watson sure as f appears as if it is thinking, and indeed, your best buddy alleges that it does think. In fact, he considers it to be omniscient in its thinking.

Guest Post by Mark Lemley. Professor Lemley is the William H. Neukom Professor at Stanford Law School and a founding partner of the successful law firm of Durie Tangri where he litigates intellectual property cases. In Ultramercial v. Hulu, decided on Friday, the Federal Circuit held that a ser...

"I am curious to see 6's citation (proper legal citation) to this second breed, this second notion of 'abstract.'"
Benson, Flook, CLS Bank, the list goes on and on and would be going on further had the CAFC gotten their sht together sooner.

Guest Post by Mark Lemley. Professor Lemley is the William H. Neukom Professor at Stanford Law School and a founding partner of the successful law firm of Durie Tangri where he litigates intellectual property cases. In Ultramercial v. Hulu, decided on Friday, the Federal Circuit held that a ser...

Guest Post by Mark Lemley. Professor Lemley is the William H. Neukom Professor at Stanford Law School and a founding partner of the successful law firm of Durie Tangri where he litigates intellectual property cases. In Ultramercial v. Hulu, decided on Friday, the Federal Circuit held that a ser...

"So shouldn't he then go on to ask himself whether such a method of product distribution is "abstract" and, if so, whether the Ultra-claimed method of product distribution effectively pre-empts that very idea?"
Obviously. But he doesn't because he is a ta rd on the whole 101 question. And perhaps I'm being a little too hard on him, it isn't that he is a ta rd so much as he simply as a fed up world view which then leads him to say ta rded things.
"But I couldn't find anywhere in Rader or Lourie any attempt to do this."
They don't for two reasons they say: 1. the parties have agreed that the abstract idea is x as put forth by both of them, and so 2. the court will not go hunting for other abstract ideas (supposedly this is from caselawl, or his reading thereof even though Rader himself went hunting in Bilski).
"In these columns, 6 runs towards the idea of putting under serious test the notion of pre-emption, checking whether there can be formulated an idea which is abstract and which the claim in view does indeed pre-empt. "
That is an eloquent way of putting it, I stand thankful MD. Although what you've just said is what I've been trying to do for the last 3 years or so, I will take the late acknowledgement and nice way of putting it.
"By contrast, these Federal Circuit judges seem to me to be to be either willfully blind to that necessary enquiry, or deliberately shying away from it, kicking it into the long grass or under the carpet."
Indeed. Exactly how to put it. But on the other hand this case does have a weird procedural aspect to it which is making them more shy. They don't want a whole bucketload of patents summarily invalidated for "failure to state a claim" when they bring suit.
"But I forgive them if they are doing it deliberately, to tee this case up for SCOTUS review and thereby confront SCOTUS with the consequences of CLS."
Agreed.

Guest Post by Mark Lemley. Professor Lemley is the William H. Neukom Professor at Stanford Law School and a founding partner of the successful law firm of Durie Tangri where he litigates intellectual property cases. In Ultramercial v. Hulu, decided on Friday, the Federal Circuit held that a ser...

I'm not really sure you know what that phrase means if you're using it like that.
"And as you've repeatedly demonstrated, you've got no clue what patent law is. "
He said to the man whose pet legal theory, preemption, is all the talk of the town nowadays. Implemented, as it happens, in exactly the same way as was espoused many years ago by the same man.
"I know far more what an "abstract idea" is then you do."
Really? Then pray tell why you haven't been calling the cases correctly and why you keep blowing your top at watchdog over cases that are correctly decided to be ineligible?
As to throwin' down in front of a panel of ta rds at the board, sure thing ma brosef. Anytime anywhere, and any case. All your little tricks will not avail you in the face of the man that literally was the one to make this legal interpretatin of the law popular. If you want to take this dispute to the mat, or to the ring, or to a more puss ified arena like the swimming pool or the track field we can move it out there too. Just to make your humiliation complete.

Guest Post by Mark Lemley. Professor Lemley is the William H. Neukom Professor at Stanford Law School and a founding partner of the successful law firm of Durie Tangri where he litigates intellectual property cases. In Ultramercial v. Hulu, decided on Friday, the Federal Circuit held that a ser...

First I can assure you that you are mistaken about there being some sort of "conspiracy theory"ish "connection" between north korea wanting to nuke us and in anonymous using the nuclear missle analogy. They are americans ta rd, they don't want to be blown up any more than the rest of us and they sure as f do not want N korea getting nuke plans any more than the rest of us, regardless of them wanting sentencing guidelines etc fixed.
I cannot believe that, even though you are old, and probably still scared of commies with nukes, you would let anon aka AI, out reading comprehension you.
Let's be clear, they are threatening the release of embarrassing (and possibly damaging) infoz about the gov, not weapons plans, and certainly not actual nukes. The group anon is always using "nukes" "orbital ion cannons" etc. as part of their rhetoric to describe the effects of releasing information.
In any event, once you get your old man pant ies out of a kno t thinking about real life nukes, perhaps you will reconsider their plans.
Although you seem to feel like they should work "within the system" to change things like sentencing guidelines. 1. They probably don't know how / are not capable of doing so because they are excluded from your gentleman's club of the bar. 2. The people that have been doing so and who are best at this have been failing. and 3. It is a lot more fun this way. oh and 4. Just like you said, it takes someone like a supreme court justice, or a person of that magnitude of accomplishment to even have a chance at getting these things done "within" the system. As nnon noted above, working "within" a broken system, which is broken for a reason(s) (see prison industrial complex making $$$) is not the way to do it all the time.
Also, pay attention to whom they have hacked as of now, they did not hack the DOD or the pentagon, or any other places where you might find nuke plans. Although, yes, I'm sure they could. But you can put your ta rd brain at ease, they neither want N korea to have nuke plans or want themselves to be nuked.

There are only a few CLEs that treat the event as a comprehensive course really focusing on advanced patent law issues. Although pricey – I would recommend the Chisum Patent Academy taught by the team of Don Chisum and Janice Mueller. Next meetup is February 20 – 22, 2013 in NYC. http://www.c...

Amen sister.
"The Supreme Court decisions have done nothing to clarify what is and what is not patentable. At this juncture, not only is the Federal Circuit in rebellion against the Supreme Court; an influential judge from another circuit dismissed an entire high-tech case with prejudice and promptly penned an article entitled “Why There Are Too Many Patents in America”; the International Trade Commission is under siege from an explosion of technology cases and recently sought comment from the public as to whether certain patents should have limited remedies; the Administration (United States Patent and Trademark Office and the Department of Justice) have differing opinions regarding the patentability of genes and genetic tests; thermonuclear patent warfare between high tech companies is overloading our courts; market based solutions are spawning Fortune 500 companies as the new patent troll; and a patent valuation bubble reminiscent of the real estate market before the crash is driven ever forward as companies amass patents as a shield of paper armor not as an instrument of innovation. "
Amen again.
The issue though with your proposal is that the tar ds currently applying for patents on ineligible subject matter do not want the congress to step in. That is because the congress cannot step in an overrule the judicial exceptions, because, without the judicial exceptions there is a good case that the patent laws would be unconstitutional. If the judicial exceptions were overruled then it becomes cake to silence speech and do other unconstitutional things etc. In fact, we just saw a case where speech was attempted to be silenced in Prom iirc. And if the congress cannot overrule the judicial exceptions without running afoul of the constitution then the only possible thing they could do is "nothing" or "restrict patent eligibility further" which is what those people applying for patent ineligible subject matter most certainly DO NOT WANT so to speak.

Dr. Sheppard is an Assistant Professor of Law at the University of Nebraska Lincoln College of Law. Prior to joining the University of Nebraska, Dr. Sheppard was Chief Counsel on Patents and Trademarks and Courts and Competition policy for the United States House of Representatives Commmittee o...

Depends on what you want to cite from it. What do you suppose is worth citing from these general statements he made? Are you thinking he is abolishing compact pros? What do you take away from this mish mash of ramblings?

"Was the use of the word --code-- in the original version of claim?"
Why don't you do your own grunt work lester jester?
You want to know what I would do on a hypothetical case that doesn't exist Lester Jester? Without commenting on the ultimate validity of these claims, or of hypothetical claims that don't exist, as surely that is a question for a court, I will tell you.
First, the drawings will be objected to until they show the alleged configurations. Then there will be 112's out the wazzoo. 112 enablement for claiming a product that construed literally, is impossible to make. 112 1st lack of written description for at least one certain word as written (I would note the two different claim constructions at this point and note which was literal and which was ivo the spec and which one was used for the purpose of this specific rejection under 112 1st). 112 2nd for the two different claim constructions the claim is amenable to. And finally, if I had your example reference, I'd give them the 102 noting which claim construction it was under.
The applicant then gets to reply, fix the parts making the thing literally impossible to make, or else tell me about how it is totally ez to make, fix the parts which lack WD, and make sure that those amendments distinguish over my Morse code ref, then they submit it, and I treat their response. And he gets to try to amend his drawings, although he may well fail, or else cancel those limitations about the configurations. Simple as pie in hypothetical cases that don't exist brosensky.
All that said, the instant patent may well be valid, I do not comment on such, as that is a question for a court. I wouldn't worry about that tho lester jester, courts know about 112 1st, and they know what new claim constructions may well walk right into.

by Dennis Crouch InterDigital v. USITC and Nokia (Fed. Cir. 2012) InterDigital is a publicly traded company whose primary revenue comes from patent licenses. The majority of 3G mobile handset manufacturers pay royalties to the company. After conducting its investigation, the US International T...

"does “code” include a scrambling code, or is it limited to the definition and usage of “code” in the specification?"
That is how the word is ambiguous in a manner that isn't equivalent to broad. Basically she is asking whether code can be a code that is a scrambling code, or simply a code as used in the context of the invention, a spreading code.
What she is further saying is that if the term "code" simply means "code" broadly and unrestrictedly, then they lack WD because they didn't describe the invention thusly at the time of filing and thus did not possess it. This is an amended claim, not an original.
"because it is described as a spreading code, produced by a spreading code generator, and no other form of code is suggested."
She is saying that you can't interpretlol claim terms outside of what you disclosed and thereby sneak in new matter. What she fails to remind people of is that this would lead to a lack of WD, and thus you cannot interpret thusly.

by Dennis Crouch InterDigital v. USITC and Nokia (Fed. Cir. 2012) InterDigital is a publicly traded company whose primary revenue comes from patent licenses. The majority of 3G mobile handset manufacturers pay royalties to the company. After conducting its investigation, the US International T...

I also wonder how they make a subscriber unit in which each of successively transmitted signals is shorter than the message. One would think that signals that are being transmitted are not actually inside the subcriber unit.

by Dennis Crouch InterDigital v. USITC and Nokia (Fed. Cir. 2012) InterDigital is a publicly traded company whose primary revenue comes from patent licenses. The majority of 3G mobile handset manufacturers pay royalties to the company. After conducting its investigation, the US International T...

by Dennis Crouch InterDigital v. USITC and Nokia (Fed. Cir. 2012) InterDigital is a publicly traded company whose primary revenue comes from patent licenses. The majority of 3G mobile handset manufacturers pay royalties to the company. After conducting its investigation, the US International T...

by Dennis Crouch InterDigital v. USITC and Nokia (Fed. Cir. 2012) InterDigital is a publicly traded company whose primary revenue comes from patent licenses. The majority of 3G mobile handset manufacturers pay royalties to the company. After conducting its investigation, the US International T...

" patent’s exploitation where the exploitation "
They should have said :
" manufacturer’s exploitation where the exploitation "
"Judge Newman’s suggestion here is to give claim terms a narrow definition when the patentee uses an ambiguous term "
Whereas it should be summary execution by 112 2nd if not for their floundering 112 2nd caselaw.

by Dennis Crouch InterDigital v. USITC and Nokia (Fed. Cir. 2012) InterDigital is a publicly traded company whose primary revenue comes from patent licenses. The majority of 3G mobile handset manufacturers pay royalties to the company. After conducting its investigation, the US International T...

"Actually the court in Bilski was concered about patenting an abstraction. "
I'm not going to argue with you about Bilski. We have discussed it to death over years. And we have enough on our hands in the instant case.
"Any and every attempt to devise a universal theory for patent ineligiblity which applies to the general classes of statutory subject matter will fail miserably. "
Nah, preemption does just fine thanks. It involves using the old noggin' from time to time, and sometimes tar ds in authority will boink it up, but it isn't that bad.
But in any case, here, you may have the final word. I doubt if there is much left to say. I have said that preemption will likely end the claim without Myriad providing some substantive sht that isn't preempt, you say pish posh, you don't even have to worry about the preemption doctrine, it doesn't even apply to these kinds of claims. I will add finally that at the least, you will see at the USSC, regardless of outcome, that it will be decided on preemption. You may finish off whatever it is you'd like to add.

"Nice moving of the goalpost, 6!!!!!"
Actually the goalpost was already moved over at patent docs, but if you weren't privy to that convo, sorry bro. Kev likewise presented the "oh but you can still study it!" stuff, as I told you in this thread I thought already. I don't have time to copy/paste the whole of my conversations on this matter in every last thread, the issues are too large and numerous, and there are too many people with their own tar dation to work through. I'm only one man, I can only help the unwashed masses so much.
However, I will grant you, if the court will buy your "oh well they can still study it!" line then so be it, I have no problem with it. I can promise you that they will not though. You could still study Benson's algorithm, Bilski's manner of hedging, prom's correlation, and flook's algorithm but their claims still went down the tubes. Wonder why that is? It could be because of what I've said for the last 4 years. Because they were all just trying to get "the good stuff" from the judicially exempt subject matter while leaving some shty subject matter behind so they didn't get busted by 101. Benson wanted all digial computer uses. Flook wanted all digital computer uses in a certain field. Bilski wanted all uses in energy hedging. Prom just wanted pretty much everything.
"So now in addition to the caveat we discussed earlier, you'd like to introduce into your analysis a caveat that says only some "uses" of the "natural composition" count for the purpose of determining whether pre-emption occurs."
Anything not lolable should probably do you in a marginal case where the uses that are preempt by the claim are few. But as I've noted to you many hundreds of times, if there are naught but a few uses here or there that are not preempt then your claim is probably going down. 30 non-lolable uses should probably win a slightly less than marginal case np. But I cannot say in the instant case, you have to weight the not preempt uses against what the claim preempts. If the claim gets 1 millon nonlolable uses then compared to the 30 that were left out, you're still effectively patenting the underlying judicial exception.
"And according to you the only "uses" that matter are "substantial" uses "
That is my way of framing it, but don't be surprised if you start seeing other people pile on using the same or similar terminology, since I'm apparently the only person in the world that can lead in this subject. And make no mistake, this is me leading the discussion on this legal matter right now, in real time.
To me, the inquiry is simpler, vastly simpler, than you guys are trying to make it. But if you want to get all complicated, then I can get all complicated with you.
"And according to you the only "uses" that matter are "substantial" uses and (this is almost too funny to believe) the only uses that are "substantial" in your view are the uses which lead to the prodcution of the claimed composition!"
No, they happen to be in this case. It will vary in other cases, and by the art in which the discovery is made. Algorithm in Benson, digital comps, hedging in Bilski, hedging energy costs etc. etc. Were we talking about the Benson cases you'd be scoffing "but the only substantial uses in your view are the uses which are related to a digital purpose computer!". And I'd be like, um, yeah, w t f else do you really want me to believe you're going to do with BCD to binary? The same way the court did.
Put it simply, if you're only leaving out of the scope of your claimed applications of the judicially exempt subject matter ones that nobody gives two shts about, then you're just trying to preempt the exempt subject matter without getting in trouble for it. Precisely what the USSC does not want and which it has ruled time and again it will stop.
I know you don't like this MM, but it literally is no more complicated than that.
"You think Breyer isn't going to see through your hogwash? "
You think he isn't going to see through yours? Breyer literally just joined 8 other people supporting my "hogwash". Sorry if you missed that one.
"So what?"
So preemption is a concern.
In any case, your understanding of the preemption doctrine is at least a bit more expanded now. Good talking to you bro, now let's be patient and see if the case doesn't turn out precisely how I have said, or perhaps, precisely how you have.

by Dennis Crouch The Wi-LAN decision focuses on a litigation discovery dispute. In 2009, Wi-LAN had its attorneys at Kilpatrick Townsend (then Townsend) analyze the scope of LG's infringement. After LG refused to pay, Wi-LAN forwarded the results of the Townsend inquiry (the Townsend Letter) to...

"How about a real idea? Reinstitute the original Quid Pro Quo and only publish at patent grant? That way you stop penalizing the inventors by basically giving their stuff away for free while each of the processing mountains of backlogs (regular prosecution, RCEs, and Appeals continue to grow and the pilfering of published (but not patented) brain trust is freely accessed by foreign countries."
As much as it pains me, I do have to somewhat agree. Although on the whole I feel the balance here still favors the publication we're doing now, or even before what we're doing now.
"As it is now, the government already gets its quo regardless of any quid, and there simply is no real impetus to get the work done."
I have to agree with that also. I might even suggest that congress should step in, mandate examination within a year (or whatever around that time). But then, if they leave it an unfunded mandate it won't help anything. Also, there are people that prefer to hold off examination. In either event, the antiquated old school patent system becomes more and more outdated with every passing year. Indeed, I suffered because of such antiquation, more broadly considered than just our topic of conversation, just yesterday.

by Dennis Crouch The Wi-LAN decision focuses on a litigation discovery dispute. In 2009, Wi-LAN had its attorneys at Kilpatrick Townsend (then Townsend) analyze the scope of LG's infringement. After LG refused to pay, Wi-LAN forwarded the results of the Townsend inquiry (the Townsend Letter) to...

Really? They said to "redo" it? Nah tar d, they didn't say "redo" it, as in, "redo" it without even paying attention to what the USSC has set forth. I already explained this to you above.
"You do not get to decide that this does not follow the Supreme Court holdings. "
Sure I do bro. Not only do I "get to" I swore an oath to.

"From the above it is clear that you admit that if your analysis became law you could legally strip away, and ignore the elements in ANY process claim A.K.A. dissection, and declare what's left an abstract idea"
You do that and then you do a preemption analysis after you have your base abstract idea/natural phenom/lawl of nature. Exactly as the USSC did when they pulled the correlation in prom out of the method and then evaluated the claim against that for preemption.